THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS IN THE SUPREME COURT OF CANADA BEREND HOVIUS* ROBERT MARTINI London, Ont. The entrenchment of the Canadian Charter of Rights and Freedoms will not transform the Canadian system of government. Instead, the Supreme Court of Canada will strive to ensure that the legislatures continue to bear the ultimate responsibility for determining social policy. The court is also unlikely to use the Charter to control effectively police behaviour. The approach of the court to the Canadian Bill of Rights was characterized by restraint, a restraint which was demanded by neither the status nor the wording ofthe Bill. There is nothing in the Charter which requires the abandoning of this tradition. Indeed, there are many features ofthe Charter which will assist theSupreme CourtofCanada in maintain- ing its attitude ofrestraint. Nevertheless . the Charter will not become meaning- less. It will provide an additional lever for the Supreme Court of Canada to intervene where unprecedented and unjustifiable deviations from the accepted, although largely unarticulated, political principles ofthe Canadian state occur. L'enchâssement de la Charte canadienne des droits et libertés n'est pas appelé à transformer le système canadien de gouvernement. Au lieu de cela, la Cour suprême du Canada doit s'efforcer d'assurer que les législatures continuent à endosser la responsabilitéffinale dans la détermination de toute politique sociale. Il est aussi peu probable que la Cour utilise la Charte pour contrôler de façon efficace le comportement de la Police. L'attitude de la Cour vis-à-vis de la Déclaration canadienne des droits était caractérisée parla réserve, réserve que ni le statut ni le contenu de cette loi n'exigeaient . Rien dans la Charte ne requiert l'abandon de cette tradition . Enfait, plusieurs aspects de la Charte permettront à la Cour suprême du Canada de conserver cette attitude réservée. Néanmoins, la Charte ne sera pas dénuée de portée; elle va constituer pour la Cour suprême du Canada un levier supplémentaire pour lui permettre d'intervenir là où survien- dront des déviations injustifiables et sans précédent aux principes politiques établis, bien que pour une grande partie non énoncés, de l'État canadien. I . Introduction . It is widely believed that the entrenchment of the Canadian Charter of Rights and Freedoms' presages a transformation of our system of govern- * Berend Hovius, of the Faculty of Law, The University of Western Ontario. I Robert Martin, of the Faculty of Law, The University of Western Ontario. The preparation ofthis article was assisted with funds provided by the Ontario Law Foundation . We wish to thank David Nadeau and Michael Rumball for their valuable research efforts. Our colleagues G.J . Brandt, Katherine de Jong, and Robert Solomon assisted us with comments on an earlier draft. Special thanks also to Teresa Bourne and Jean Tasker. 1 Constitution Act, 1982 Part 1 ofSchedule B, Canada Act 1982, 1982, c . 11 (U .K.). 1983] Charter of Rights and Freedoms in the Supreme Court 35 5 meat. This view; which is heavily influenced by the United States experi- ence of the last three decades, assumes that the courts will be forced to play a new, activist role in our society . We do not share this view . We believe that the courts, and in particular the Supreme Court ofCanada, will seek to avoid such an institutional realignment. They will, instead, strive to ensure that .the legislatures continue to bear the responsibility for determining social policy. The history and traditions of the Supreme Court of Canada favour an attitude of restraint. There is nothing in the Charter which will compel the court to renounce its accustomed role . Indeed, there is much which will be serviceable to judges disinclined towards activism. We are restricting our analysis to the Supreme Court of Canada because the hierarchical structure of our court system dictates that it is the approach of the Supreme Court which must determine whether the courts generally will adopt an activist role under, the Charter. Accordingly, we snake no attempt to analyse the growing number of lower court decisions dealing with the Charter.' We will develop our argument by examining first the traditions of the Supreme Court ofCanada as evidenced by its approach to the Canadian Bill ofRights .3 We will then assess the provisions of the Charter with a view to determining their effect on those traditions . 11 . The Supreme Court of Canada and the Canadian Bill ofRights. A. Introduction. The Supreme Court of Canada accepted that the Canadian Bill of Rights, enacted as an ordinary statute by the Parliament of Canada in 1960, 4 imposed three distinct duties on the courts. First, it required them to interpret federal laws in accordance with the rights and freedoms recog- nized in the Bill .' Secondly, it authorized them to ensure that administra- tive acts taken pursuant to federal legislation observed the procedural safeguards specified in the Bill. Thirdly, it empowered them to rule that 2 See, for example, Professor Tarnopolsky's regular column in Canadian Lawyer entitled Charterwatch . Two interesting journalistic surveys are Taber, New Rights, But Our Lives Unchanged, The Ottawa Citizen, Aug. 6th, 1982, p. 33, and Vienneau, Challenging the Charter, Toronto Star, Aug. 14th, 1982, p. B5 . R.S.C. 1970, Appendix III. 4 For more detailed analysis of the Bill, see W.S . Tarnopolsky, The Canadian Bill of Rights (2nd ed., 1975), and Hovius, The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill of Rights (1982), 28 McGill L.-J. 31 . 5 Brownridge v. The Queen, [1972] S .C.R. 926; The Queen v. Burnshine, [1975] 1 S.C.R. 693, at p. 714, per Laskin J. dissenting; Jumaga v . The Queen, [197711 S .C.R. 486; Chromiak v. The Queen, [1980] 1 S.C.R. 470 ; andR. v. Shelley (1981), 37 N.R. 320 (S .C.C.). 6 Leiba v . Minister ofManpower and Immigration, [1972] S.C.R. 660; Lowry and Lepper v. The Queen, [1974] S.C .R. 195; Attorney General ofOntario v. Reale, [197512 S.C.R. 574; and Mitchell v. The Queen, [1975] 2 S.C.R. 570. 356 THE CANADIAN BAR REVIEW [Vol. 61 any law of Canada' which was in conflict with the Bill, was inoperative or of no effect. s in other words, the court accepted that the Bill while subject to alteration and repeal by the ordinary legislative process, had many of the same attributes, at the federal level, as a constitutionally entrenched bill of rights . Any attempt to discern the approach which the Supreme Court of Canada will take to the Charter must, therefore, take into account the attitude adopted by the court to the Canadian Bill of Rights . That attitude illustrates the tradition ofjudicial restraint which, we argue, will determine the court's interpretation and application of the Charter. B. Judicial Restraint Illustrated . The Supreme Court of Canada has heard approximately thirty cases involving the Canadian Bill of Rights. In six of these cases, the Bill did affect the result. Only once, in the famous Drybcntes case,' did the court actually hold that a provision in a federal statute was rendered inoperative. On the other five occasions the Bill either influenced the court's interpreta- tion of federal legislation' ° or buttressed the imposition of fair procedures in the application of the law ." These six cases notwithstanding, the court generally refused to protect individual rights and freedoms . Canadian courts have become accustomed to reviewing administra- tive action to ensure that it is statutorily authorized. In doing so they have frequently imposed procedures which accorded with the rules of natural Defined in s . 5 ofthe Bill as "an Act of the Parliament of Canada enacted before or after thecoming into force ofthis Act, any order, rule, or regulation thereunder, and any law in force in Canada or any part ofCanada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada". 8 In The Queen v. Drvbones, [1970] S.C.R. 282, the court held that s. 94(b) of the Indian Act. R.S.C. 1952, c . 149 was rendered inoperative. This effect of the Bill on prior enactments which conflicted with the Bill was never doubted in the later cases. The court also repeatedly accepted that the Bill would have similar effect on an inconsistent law passed after 1960. The Queen v. Appleby, [ 1972] S .C .R. 303; Curr v. The Queen, [1972] S.C.R. 889; Duke v. The Queen, [1972] S.C.R. 917; Brownridge v. The Queen, supra, footnote 5; Hogan v. The Queen, [1975] 2 S. C. R. 680, (1975), 18 C.C.C. (2d) 65; andBliss v. Attorney General ofCanada, [1979] 1 S .C.R. 183 all involved legislation enacted after 1960. Yet, in none of these cases did any of the justices suggest that legislation enacted subsequent to the Bill should be treated differently than that enacted before 1960. In Bliss, for example, the court simply stated the legal issue as follows: "Is s. 46 ofthe Unemploy- ment Insurance Act, S .C. 1970-71-72, c. 48 as amended, rendered inoperative by the Canadian Bill ofRights, R.S.C. 1970, Appendix III, as amended?" Regarding the legal justification for holding that the Canadian Bill of Rights bound future Parliaments, see Tarnopolsky, op. cit., footnote 4, p. 143 and P. Hogg, Constitution- al Law of Canada (1977), pp. 437-438. 9 The Queen v. Do,bones, supra, footnote 8 . 1° Brownridge v. The Queen, supra, footnote 5 ; R . v. Shelley, supra, footnote 5 . ' 1 Leiba v. Minister of Manpower and Immigration, supra, footnote 6; Lowry and Lepper v.